ART.

16
Equality of opportunity in matters of
public employment
Vaibhav Sonule
Asst.Prof, School of Law
Alliance University
Bangalore
 SCOPE
• Equality of opportunity to all citizen in
employment under State.
• Discretion of State.
• The reservation to class who not adequately
represented in the service of State.
• Those who are unequal can not be treated by
identical standard.
 Art. 16 (1)
“There shall be equality of opportunity for all
citizen in matters relating to employment or
appointment to any office under the State.”

• Equality of opportunity to all citizen.

• Includes all matters relating to employment.
 Equality of Opportunity
Two Concepts
1. Affirmative Action – equalizing result with
various classes
2. Non- Discrimination – Level playing

• Not absolute
• Reasonable classification is allowed in Art. 16
 Art 16 (2)
No citizen shall, on ground only of religion, race, caste,
sex, descent, place of birth, residence or any of them,

be ineligible for, or discriminated against in respect of,

any employment or office under the State.

• Scope is restrictive than Art 15

• Negative form of Right but assures the effective
enforcement of equality
• Discriminated against –
 To prevent discrimination not only in
appointment but treatment after
appointment .

 Unfavorable act
• Descent –
 hereditary succession
 Permitted in case of death of employee

• Residence –
 bar on discrimination on ‘NOT’ residence of State.
 Discrimination in educational institution permitted
 Geographical classification permitted based on scientific study
• Place of Birth –
Differ from Residence.

• Sex –
 Prohibit discrimination in equal circumstances
 but grant special treatment under Art. 15 (3)
 Art. 16 (4)

 Nothing in this Article shall prevent the State

from making any provision for the reservation
 of appointments or posts in favour of any
backward class of citizens which, in the
 opinion of State, is not adequately represented
in the service under the State.

Not provide any Fundamental Right to reservation

but discretion to State to providing reservation
 provision
• Reservation may be made not only by Statute
but also an executive order.
(Indra Sawhney v/s UOI AIR 1993 SC 477)
• Positive Discrimination
• But to get benefit, social and other relevant
criteria is applicable.
 Reservation
• Reservation implies Separate Quota for
category.

Vertical Reservation – S.C./S.T/O.B.C. u/A 16 (4)

Horizontal Reservation – physically disable 16 (1)
 Any Backward Class
• Wider than Art. 15 (4)
• Indentified on the basis of caste, occupation,
poverty, Social Backwardness
• The classes do not qualify u/A 15 (4) may
qualify u/A 16 (4).
 Not adequately represented
• Subjective satisfaction of Govt.
• Govt. must consider all relevant circumstances
• Decided by reference to numerical (size of
class) and qualitative test
 Art. 16 (4) A
(77th amnd, 1995)

Nothing in this article shall prevent the State

from making any provision for reservation
In matters of promotion [with consequential
seniority ] (85th Amnd, 2001)
In the service
In favour of SC & ST
If not adequately represented in service
under the State.
 History of Amendment
• To overcome the decision in Indra Sawhney
“No reservation in promotion could be made
in Art 16 (4) and is confined to initial
appointment only.”

The provision is only a enabling provision

 M.R.Balaji v/s State of Mysore
AIR 1963 SC 649
S.C. observed
 The order bad on several grounds as the
classification is merely based on caste.
Art 15 (4) does not make classification
between backward and more backward.
 Economical backwardness is yardstick to
determine social backwardness.
Art. 15 (4) is an exception to Art 15 (1)
• The fundamental Right of the rest of society
were to be completely ignored.
• For looking after the advancement of
Backward Classes, the State would be justified
in ignoring altogether advancement of rest of
society.
• So maximum limit should not be more than
50%.
 T. Devdasan v/s Union of India
AIR 1964 SC 179
• Art. 16 (4) is an exception to Art. 16 (1) [ 4: 1]
• A reasonable number is one which strikes the
balance between claims of backward class and
other citizens.
• Carry forward rule is invalid.
Dissenting Opinion
“ The idea of equality of opportunity in Art 16 is
to provide special reference to deprived
classes of citizen.”
 S.V. Balram v/s State of Andhra
Pradesh AIR 1972 SC1375
Supreme Court observed
The Commission prepared list not only on the
basis of caste but poverty, occupation, caste
and educational backwardness.
So it is not violation of Art. 15 (4).
 State of Kerala v/s N.M.Thomas
AIR 1976 SC 490
• Art. 16 (4) is not exception to Art. 16 (1)
• Art 16 being a facet of Doctrine of equality
under Art.14 which permits reasonable
classification.
• Criteria laid down by S.C.
 The basis of classification has to be backwardness
 Rational nexus to object
 Administrative efficiency kept in view.
Minority View
The principal of classification could not be
extended to confer preferential treatment.
 Akhil Bhartiya Shoshit Karmachari Sangh v/s Union of
India AIR 1981 SC 298

• The Fundamental Right of Equality justifies

classification to SC/ST.
• Art 16 (1) itself permits Reasonable
Classification.
• Adequate Representation u/A 16 (4).
• There is no fixed limit to reservation for SC &
ST though generally Reservation may not be
excess of 50 %. (carry forward rule held valid)
 Indra Sawhney v/s Union of India
AIR 1993 SC 477
Questions Raised -
• Reservation under Articles 16 (1) and 16 (4) of
Constitution of India
• Backward Class ?
• Adequate representation ?
• Quantum of Reservation
• Reservation in Promotion
• Carried forward Rule
• Creamy layer amongst backward class of
citizens
 Art 16 (1) & (4)
• Reservation can be made by Executives also
u /A 16 (4)
• Art 16 (4) is not an exception to Art 16 (1) but
the classification is inherent in clause (1).
• Reservation also be provided u/ A 16 (1) but it
has to be adjusted as per the level of
representation.
• All supplementary provisions can be provided
u/A 16 (4)
 Backward Class
• Classes deserving special treatment.
• It has been classified by Constitution itself.
• Social Backwardness not solely based on caste
or economics.
• Court has left this task to Commission to
define Backward Class.
Adequate Representation
• Subjective satisfaction of Govt.

Promotion
• Reservation can not be called Anti-Meretian
• Art 16 (4) does not permit reservation in
Promotion
• Confined to initial appointments only.
 Quantum of Reservation
• Should not exceed 50% with exception on
account of extraordinary situation.
• Carry forward rule considered as valid but
should not exceed 50 %.
• The sub classification is invalid (poor and
more poor )
• 10 % reservation in favour of other
economically backward class people not
covered by existing scheme is struck down.
 Creamy Layer
• Socially advancement member of Backward
class should be excluded
• Social advancement also includes Economic
Advancement
• Excluded from the benefit of Reservation.
• Court directed Govt to specify basis of Creamy
Layer on the basis of income and extent of
holding.
 Dissenting View
JUSTICE SAWANT

• Art 16 (4) is not exhaustive of reservations that can be made

for classes other than backward classes under Article 16(1).

• Backward classes other than the Scheduled Castes and

Scheduled Tribes are entitled to the benefit of the
reservations under Article 16(4).
• The expression "weaker sections" of the people does not
necessarily refer to a group or a class. This weakness may be
on account of factors other than past social and educational
backwardness.

• The economic backwardness of the backward classes under

Article 16(4) has to be on account of their social and
educational backwardness.
• Adequacy of representation, serves as a guide for the
percentage of reservations.

• If the percentage of reservations is disproportionate or

unreasonable , it denies the equality of opportunity to the
unreserved classes and violates Article 16(1).
JUSTICE THOMAS
• Such classification must stay strictly within the
remedial actions.
• Such programme must be consistent with the
fundamental objective of equality.
• Any such action by the State must necessarily be
subjected to periodic administrative review by
specially constituted authorities so as to
guarantee that such policies and actions are
applied correctly and strictly to permitted
constitutional ends.
• What is sought to be identified is not only caste
but social and educational backwardness,
generally manifested by disabilities such as
illiteracy, poverty, incurable diseases, etc.
• The kind of backwardness which is required to
attract the special provisions protecting the
backward classes of citizens under Article 16 in
respect of public employment is identical to the
social and educational backwardness mentioned
in Article 15(4).
• Efficiency of administration is im
• the focus in any such action must be on the
victims and not on the wrong doers
• Any unfair and undue deprivation of any class
of people is constitutionally impermissible.